Opinion
A147079
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON YIP, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR304318)
After defendant Jason Yip entered pleas of no contest to charges of evading an officer and possession of methamphetamine for sale, imposition of sentence was suspended and he was admitted to probation upon specified conditions. Defendant advances what is in essence a single contention, namely, that the condition of probation that he "not possess any deadly or dangerous weapons" is constitutionally vague without an express knowledge requirement. In accordance with a recent decision of our Supreme Court, we reject the contention and affirm.
THE FACTS AND PROCEEDINGS BELOW
Early in the morning of December 1, 2013, California Highway Patrol Officers Jorgensen and Sparling were driving through a Jack in the Box parking lot in Fairfield when a woman flagged them down. Pointing to a white SUV in the lot, the woman said she had been in that SUV and the driver had refused to let her out. Jorgensen approached the SUV, in which Yip was sitting. Jorgensen questioned Yip, who said he had not let the woman out because they were on the freeway and it would have been unsafe. Jorgensen asked Yip to stay in the SUV, and returned to talk to the woman. As he was talking to her, Jorgensen heard the SUV start up, and then saw it back up and flee the parking lot, ignoring the officers' demand to stop.
The officers got into their patrol car, activated the flashing lights, and began pursuit. Yip led them on a high speed chase, swerving back and forth between lanes on the freeway. He then left the freeway and entered a residential area, exceeding the speed limit and running numerous stop signs. Eventually, Yip drove off the paved roadway, and fled on foot, with the officers following. He eventually complied with Jorgensen's command to stop and was taken into custody.
Meanwhile, other officers responded to the scene and performed an inventory search of the SUV. They found a small, white bag, inside of which were two small baggies and three "wraps" containing a suspicious substance, later determined to be a usable amount of methamphetamine.
DISCUSSION
Yip asserts that the quoted probation condition is vague. In his words: "[T]his condition is facially vague, in violation of appellant's due process right to fair and adequate notice. (See In re Sheena K. (200[7]) 40 Cal.4th 875, 890.) It does not include an express knowledge requirement providing appellant with advance warning that he could only be found in violation of probation if he is aware that he possesses a prohibited item. (Sheena K., supra, at 890-91; In re Kevin F. (2015) 239 Cal.App.4th 351, 365.)" As Yip acknowledges in his reply brief, he is "not arguing that the phrase 'deadly or dangerous weapons' is unconstitutionally vague. Rather, he is arguing that the condition prohibiting possession of deadly or dangerous weapons is vague without an express knowledge requirement."
Both sides were aware in their briefing that the general issue of this appeal was pending in our Supreme Court. Following the completion of briefing here, the Supreme Court filed its decision in People v. Hall (Feb. 9, 2017, S227193) ___ Cal.5th___ . It is dispositive. We quote the relevant highlights:
"Our analysis begins with the void-for-vagueness doctrine. This doctrine, which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citations.] In determining whether the condition is sufficiently definite, however, a court is not limited to the condition's text. [Citation.] We must also consider other sources of applicable law . . . . Thus, a probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' [Citation.]
"Given this legal backdrop, we conclude that the firearms and narcotics conditions are not unconstitutionally vague. California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature. [Citation.] The requisite scienter for these probation conditions is thus easily ascertainable by reference to ' "other definable sources" ' that make sufficiently clear the conditions' scope." (People v. Hall, supra, [2017 WL 527563 *2-3].)
"As we have previously observed, the vagueness doctrine demands ' "no more than a reasonable degree of certainty." ' [Citation.] [¶] That degree of certainty is present in the conditions at issue here. Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person. So too with the narcotics condition, which is best read as proscribing defendant from knowingly using, possessing, or having in his custody or control any illegal drugs, narcotics, or narcotics paraphernalia, without a prescription. [Citation.] Because no change to the substance of either condition would be wrought by adding the word 'knowingly,' we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." (People v. Hall, supra, [2017 WL 527563 *4].)
In reaching these conclusions, the court expressly disapproved the two decisions on which Yip relies—People v. Freitas (2009) 179 Cal.App.4th 747 and In re Kevin F. (2015) 239 Cal.App.4th 351.
DISPOSITION
The order is affirmed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Stewart, J.